Citation Nr: 21076399 Decision Date: 12/23/21 Archive Date: 12/23/21 DOCKET NO. 16-41 864A DATE: December 23, 2021 ORDER Prior to September 3, 2021, entitlement to a disability rating in excess of 30 percent for arteriosclerotic heart disease, status post inferior wall myocardial infarction and angioplasty is denied. Entitlement to an initial compensable rating for service-connected bilateral hearing loss is denied. FINDINGS OF FACT 1. Prior to September 3, 2021, the medical evidence does not show that the Veteran's decreased METs scores and/or his physical limitations are solely due to his service-connected heart disease. 2. From September 3, 2021, the Veteran's heart disability has been assigned a 100 percent disability rating. 3. The Veteran's hearing loss manifests as, at worst, Level II hearing in both ears. CONCLUSIONS OF LAW 1. Prior to September 3, 2021, the criteria for a disability rating in excess of 30 percent for service-connected heart disability are not met. 38 U.S.C. §§ 1155, 5103, 5103A, 5107; 38 C.F.R. §§ 3.321, 4.1-4.7, 4.10, 4.104, Diagnostic Code (DC) 7005. 2. The criteria for an initial compensable rating for service-connected bilateral hearing loss are not met. 38 U.S.C. § 1155; 38 C.F.R. § 4.85, DC 6100. REASONS AND BASES FOR FINDINGS AND CONCLUSIONS The Veteran served in the United States Coast Guard from August 1970 to March 1992. This appeal comes to the Board of Veterans' Appeals (Board) from a Department of Veterans Affairs (VA) April 2013 rating decision of the Agency of Original Jurisdiction (AOJ). In May 2021 the Veteran appeared before the undersigned Veterans Law Judge at a virtual Board hearing. A transcript of the hearing has been reviewed by the Board, and has been associated with the claims file. In July 2021 the Board remanded the case to the AOJ for additional development. A Board remand confers upon the appellant the right to compliance with that order. Stegall v. West, 11 Vet. App. 268, 271 (1998). Substantial compliance, rather than strict compliance, is required. D'Aries v. Peake, 22 Vet. App. 97, 105 (2008). After a review of the evidence added to the record in the time since the July 2021 remand, the Board finds that the AOJ conducted additional development as instructed, and that there has been substantial compliance with the remand directives. Following the Board's remand, the AOJ granted a 100 percent disability rating for the Veteran's service-connected heart disability, recharacterized as mitral valve regurgitation, arteriosclerotic heart disease, status post inferior wall myocardial infarction and angioplasty, effective from September 3, 2021. See October 2021 rating decision. 1. Entitlement to a disability rating in excess of 30 percent prior to September 3, 2021 for arteriosclerotic heart disease, status post inferior wall myocardial infarction and angioplasty The Veteran contends that, for the period prior to September 3, 2021, his service-connected heart disability warrants a disability rating in excess of 30 percent. Disability ratings are determined by applying the criteria set forth in the VA Schedule of Rating Disabilities (Rating Schedule) and are intended to represent the average impairment of earning capacity resulting from disability. 38 U.S.C. § 1155; 38 C.F.R. § 4.1. Separate diagnostic codes identify the various disabilities. Disabilities must be reviewed in relation to their history. 38 C.F.R. § 4.1. Other applicable, general policy considerations are: interpreting reports of examination in light of the whole recorded history, reconciling the various reports into a consistent picture so that the current rating many accurately reflect the elements of disability, 38 C.F.R. § 4.2; resolving any reasonable doubt regarding the degree of disability in favor of the claimant, 38 C.F.R. § 4.3; where there is a questions as to which of two evaluations apply, assigning a higher of the two where the disability pictures more nearly approximates the criteria for the next higher rating, 38 C.F.R. § 4.7; and, evaluating functional impairment on the basis of lack of usefulness, and the effects of the disability upon the person's ordinary activity, 38 C.F.R. § 4.10. See Schafrath v. Derwinski, 1 Vet. App. 589 (1991). A claimant may experience multiple distinct degrees of disability that might result in different levels of compensation from the time the increased rating claim was filed until a final decision is made. Thus, separate ratings can be assigned for separate periods of time based on the facts found - a practice known as "staged" ratings. Fenderson v. West, 12 Vet. App. 119 (1999). The Veteran's heart condition is rated under DC 7005. 38 C.F.R. § 4.104, DC 7005. Under DC 7005, a 30 percent evaluation is assigned when a workload of greater than 5 metabolic equivalents (METs) but not greater than 7 METs results in dyspnea, fatigue, angina, dizziness, or syncope; or when there is evidence of cardiac hypertrophy or dilatation on electrocardiogram, echocardiogram, or X-ray; a 60 percent rating is warranted where there is more than one episode of acute congestive heart failure in the past year, or; workload of greater than 3 METs but not greater than 5 METs results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of 30 to 50 percent; and a rating of 100 percent requires chronic congestive heart failure, or; a workload of 3 METs or less results in dyspnea, fatigue, angina, dizziness, or syncope, or; left ventricular dysfunction with an ejection fraction of less than 30 percent. Id. A Note to Diagnostic Code 7005 provides that, if nonservice-connected arteriosclerotic heart disease is superimposed on service-connected valvular or other non-arteriosclerotic heart disease, the adjudicator is to request a medical opinion as to which condition is causing the current signs and symptoms. Id. When there is an approximate balance of positive and negative evidence regarding any issue material to the determination of a matter, VA shall resolve reasonable doubt in favor of the claimant. 38 U.S.C. § 5107; 38 C.F.R. § 3.102; Gilbert v. Derwinski, 1 Vet. App. 49 (1990). To deny a claim on its merits, the preponderance of the evidence must be against the claim. Alemany v. Brown, 9 Vet. App. 518, 519 (1996), citing Gilbert, 1 Vet. App. at 54. The Veteran was seen for a VA examination in February 2011. The examiner noted that a stress test found that the Veteran was capable of exertion equivalent to 8 METs, and no left ventricular testing was performed. A May 2014 treatment note showed that the Veteran's left ventricular ejection fraction (LVEF) was at 58% percent. The Veteran eventually had a stent placed in June 2014. In May 2016 the Veteran was seen for a VA examination, which showed that he was capable of exertion in the 5 to 7 METs range, which is consistent with "activities such as walking 1 flight of stairs, golfing without a cart, mowing the lawn (push mower), [and] heavy yard work." At that time the Veteran had 5 separate stents implanted. There was no evidence of congestive heart failure. The Veteran's next VA examination was in May 2020, where the examiner noted that the Veteran was capable of exertion in the 3 to 5 METs range, at which point the Veteran experienced dyspnea and dizziness. His LVEF was around 55 to 60 percent. As with before, there was no evidence of congestive heart failure. The examiner noted that the Veteran was capable of "sedentary work only." The Veteran reported being capable of walking around once a week, each time for a distance "typically a little less than a mile," and that he enjoyed "spending his time gardening." A May 2020 addendum opinion noted that while the Veteran also experienced some pulmonary difficulties, his "prescribed cardiology medications" contributed to the dizziness experienced by the Veteran. The addendum opinion also noted that, after a review of the Veteran's medical files, the METs that are "solely due to his cardiac condition" are 7-10. This opinion was based on the fact that there was an "absence of angina" and the severity of Veteran's pulmonary condition. In June 2020 the Veteran submitted a statement describing the symptoms he experiences. He pointed out that his "tolerance for walking is not good," that he tires easily and "often" becomes lightheaded and dizzy "every day." The Veteran also stated that he experiences angina, especially on days where he does forget to use his medications. The Veteran noted that his angina can sometimes last "for several minutes." However, the examiner was unable to determine whether the Veteran's service-connected heart disability was the cause of his symptoms. The Board recognizes that the Veteran reported symptoms such as dizziness, lightheadedness, and fatigue. These are symptoms that are capable of lay observation. Jandreau v. Nicholson, 492 F.3d 1372 (Fed. Cir. 2007). However, the determination of the Veteran's METs levels, and whether the symptoms the Veteran experiences are solely due to his service-connected heart disability, is a complex medical determination that cannot be made by the Veteran. The medical evidence shows that, at least for the period prior to September 3, 2021, the Veteran's symptoms are, in part, associated with his nonservice-connected pulmonary condition. As noted above, the Veteran's METs score that is "solely due to his cardiac condition" is in the 7 to 10 range. See May 2020 VA addendum opinion. Because the Veteran's heart condition does not equate to a METs score greater than 3 but not greater than 5, nor is it the sole cause of his symptoms such as dizziness and lightheadedness, (which has been attributed to postural hypertension), a disability rating in excess of 30 percent for his service-connected heart disability is not warranted. As a final note, the AOJ assigned a 100 percent disability rating for the Veteran's heart disability as of September 3, 2021. There is no higher rating possible for the condition, and thus it is considered a full grant for this portion of the appeal period. Accordingly, for the period beginning September 3, 2021, the Veteran's claim for an increased disability rating for his service-connected heart disability is moot. 2. Entitlement to an initial compensable rating for service-connected bilateral hearing loss The Veteran claims that his bilateral hearing loss warrants a rating in excess of zero percent. Evaluations of defective hearing range from noncompensable to 100 percent. The basic method of rating hearing loss involves audiological test results of organic impairment of hearing acuity as measured by the results of controlled speech discrimination tests (Maryland CNC), together with the average hearing threshold level as measured by puretone audiometry tests in the frequencies of 1000, 2000, 3000, and 4000 Hertz. Puretone threshold average is the sum of puretone thresholds at 1000, 2000, 3000, and 4000 Hertz divided by four. To evaluate the degree of disability of service-connected hearing loss, the rating schedule establishes eleven auditory acuity levels ranging from numeric level I for essentially normal acuity, through numeric level XI for profound deafness. See 38 C.F.R. § 4.85, Diagnostic Code 6100. The current rating criteria include an alternate method of rating exceptional patterns of hearing as defined in 38 C.F.R. § 4.86 (puretone threshold of 55 decibels or more at 1000, 2000, 3000, and 4000 Hertz; puretone threshold of 30 decibels or less at 1000 Hertz and 70 decibels or more at 2000 Hertz). However, as discussed below, at no point during the appeal period does the evidence show that the Veteran displayed exceptional patterns of hearing loss. The Veteran was seen for a VA audiometric examination in February 2011, and the results are as follows HERTZ 1000 2000 3000 4000 AVG CNC Right 20 20 45 55 35 84% Left 20 15 35 50 30 88% The Board notes that the Veteran meets the VA requirement for a hearing loss disability per 38 C.F.R. § 3.385. However, there is no evidence that the Veteran's hearing loss disability exhibits an exceptional pattern of hearing loss. Using Table VI, the combination of average puretone threshold and speech discrimination score in the Veteran's right and left ears is both at Level II hearing, a combination that warrants a 0 percent rating. The Veteran's next audiometric examination was in October 2012, and the results are as follows: HERTZ 1000 2000 3000 4000 AVG CNC Right 20 15 45 60 35 100% Left 10 15 30 55 27.5 96% Using Table VI, the Veteran's hearing loss in his both ears warrants Level I hearing, which combined equate to a 0 percent rating under Table VII. The Board notes that along with submitting his October 2012 audiometric examination results, the Veteran also submitted a VA Form 21-4138 Statement in Support of Claim. The Veteran testified that he experiences "constant ringing" in his ears due to being exposed to large-caliber weapons fire. However, while the Veteran's statement is probative as to whether he experienced in-service acoustic trauma, that fact has already been established and is not relevant to the current claim on appeal. Moreover, he is separately service-connected for tinnitus. The Veteran's next audiometric examination was in March 2013, and the results are as follows: HERTZ 1000 2000 3000 4000 AVG CNC Right 10 10 45 55 30 92% Left 20 5 30 55 28 92% As with his prior examination, the results of the March 2013 examination show that the Veteran has Level I hearing in both ears, which warrants a 0 percent disability rating. The Veteran was next seen for a VA audiometric examination in May 2016. The results are as follows: HERTZ 1000 2000 3000 4000 AVG CNC Right 15 20 55 60 38 94% Left 20 20 45 55 35 96% The findings of the May 2016 examination show that the Veteran has Level I hearing in both ears, which warrants a 0 percent disability rating. In August 2016 the Veteran submitted a "hearing evaluation report" dated from July 2016. The results are as follows: HERTZ 1000 2000 3000 4000 AVG CNC Right 20 15 50 70 38.75 NA Left 20 20 55 65 40 NA The Board notes that there is no evidence that a speech discrimination test was performed and it is inadequate for rating purposes. The Veteran's next audiometric examination was in April 2021, and the results were: HERTZ 1000 2000 3000 4000 AVG CNC Right 20 15 45 60 35 96% Left 20 25 40 55 35 100% As with prior tests, the results show that his hearing loss disability warrants a 0 percent disability rating as both of his ears have Level I hearing. Shortly thereafter, in June 2021, the Veteran reported to his physician that his hearing aids "do not seem to amplify very well for him." His doctor noted that as his hearing aids were quite old, he may need new ones. However, no audiometric testing was done at that time. The Veteran's most recent audiometric examination was done at an October 2021 VA examination. The results are as follows: HERTZ 1000 2000 3000 4000 AVG CNC Right 30 30 65 75 50 84% Left 25 30 70 70 49 88% The combination of puretone average and speech discrimination scores correspond to Level II hearing in both ears, which in turn corresponds to a 0 percent disability rating. The Board acknowledges the Veteran's contentions and notes that he is competent to report his hearing difficulties. Jandreau v. Nicholson, 492 F.3d 1372 (2007). For instance, in his August 2016 Notice of Disagreement the Veteran states that he needs the volume turned up on sound-emitting devices, and that he talks "too loudly." However, the disability ratings assigned for hearing loss are not contingent on whether the Veteran requires treatment such as hearing aids or requires increased volumes, but rather focuses on the functional impact of the Veteran's condition. This functional impact is taken into consideration with the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Notwithstanding, a higher rating is not warranted based solely on lay statements. In this regard, disability ratings for hearing loss are derived from a mechanical application of the rating schedule to the numeric designations resulting from audiometric testing. Lendenmann v. Principi, 3 Vet. App. 345 (1992). The Board notes that the VA audiological examination reports describe the effects of the Veteran's hearing impairments on his daily life, consistent with the requirements of Martinak v. Nicholson, 21 Vet. App. 447 (2007). While the Veteran contends that his bilateral hearing loss warrants a higher rating, the rating criteria contemplate speech reception thresholds and ability to hear spoken words on Maryland CNC testing. As noted above, the functional impact that the Veteran describes is contemplated by the rating criteria. Doucette v. Shulkin, 28 Vet. App. 366 (2017). Further, while the Board has also considered referring the issue to the Director of Compensation Service for possible extraschedular evaluation, there is no evidence that presents an unusual or exceptional disability picture, and thus referral is not warranted. See Doucette, 28 Vet. App. at 369 (difficulty in distinguishing sounds in a crowded environment, locating the source of sounds, understanding conversational speech, hearing the television, and using the telephone are each a manifestation of difficulty hearing or understanding speech, which is contemplated by the schedular rating criteria for hearing loss). The preponderance of the evidence is against the claim in this instance, and the Board finds that an initial compensable rating for bilateral hearing loss disability is not warranted. As the preponderance of the evidence is against the claim, the benefit of the doubt provision does not apply. Ortiz v. Principi, 274 F.3d 1361 (2001). The Veteran's claim is denied. S. L. Kennedy Veterans Law Judge Board of Veterans' Appeals Attorney for the Board M. Neville, Associate Counsel The Board's decision in this case is binding only with respect to the instant matter decided. This decision is not precedential and does not establish VA policies or interpretations of general applicability. 38 C.F.R. § 20.1303.